Week focuses on letting the sun shine on government, public records

DENVER - It might have seemed like a small thing this month when The Gazette corrected private gun sale background check numbers from the Colorado Bureau of Investigation, but as is often the case in journalism, there's a story behind the story.
Questions arose in early February about the...

DENVER - It might have seemed like a small thing this month when The Gazette corrected private gun sale background check numbers from the Colorado Bureau of Investigation, but as is often the case in journalism, there's a story behind the story.

Questions arose in early February about the accuracy of numbers released by the CBI showing that since a law went into effect in July requiring background checks on private gun sales more than 6,000 of those private checks had been conducted.

The CBI refused to answer those questions directly.

Without Colorado's Open Records Act (CORA) - a portion of state statute that guarantees public access to almost all government documents - the whole truth behind those statistics would not have been revealed.

Monday is the start of Sunshine Week, a celebration of laws across the nation that open records and meetings to the public, laws that let the sun shine on the shadowy parts of government.

Although Colorado has had an open records act since 1969, the battle for transparency continues and is heating up.

Lawmakers make pitch

Several lawmakers are championing the cause at the state Capitol. Some are trying to limit public record fees, while Sen. Bernie Herpin, R-Colorado Springs, is working to help journalists protect sources.

The Colorado Freedom of Information Coalition, a nonprofit group that has existed for years, is getting a fresh start and a new dedication to improving openness.

"About a year ago, they made a decision to try and make it a more robust type of organization, not just for journalists, but any resident of Colorado who is concerned about access to information," said Jeff Roberts, the coalition's executive director. "We can be there to help them. We've set up a website with a lot of good information."

CORA and its cousin the Freedom of Information Act, which covers the federal government, often help journalists and private citizens uncover the truth.

Gazette reporter Dave Philipps used the FOIA to acquire documents that showed that the head of Fort Carson's hospital was removed from command for a pattern of insensitive remarks to staff.

Access to documents detailing the City for Champions project enabled Gazette reporters to paint a clear picture of the proposed public and private financing for the multimillion-dollar development.

And it was a CORA request that finally answered questions about CBI background check numbers.

Some state agencies are more responsive than others about handing over documents and data that are covered under open records laws.

The Office of Economic Development and International Trade promptly provided The Gazette with City for Champions documents in an easy-to-use electronic format without requiring a formal written request. There was no charge for the public documents.

Philipps, on the other hand, fought with government officials for months to get records on the termination of the head of Fort Carson hospital.

And the Colorado Bureau of Investigation first denied The Gazette's request for data, saying in a letter that the data had been destroyed and was no longer available. It added that other records related to background checks would not be released at the discretion of the Colorado Department of Public Safety because it was "contrary to the public interest."

A week later, CBI spokeswoman Susan Medina said that the agency misunderstood The Gazette's request and that data was available, although it would take considerable time for state employees to compile it.

That data showed that the 6,000 private sale background checks were not a result of a new universal background check law but rather similar to the number from well before the law took effect in July.

Without access to public records, it's likely the private sales data would have been misused for years to come in conversations about the new universal background check law.

Despite the back and forth with the CBI, the agency eventually responded to the request and didn't charge for the data.

Curious exemptions to law

Colorado's open records law isn't the strongest in the nation - Florida and Nebraska typically get that honor - but the law presumes all records, documents and meetings are open to the public unless it's included in a narrow list of exemptions.

There are some curious exemptions - the state's watchdog, the State Auditor's Office, is largely exempt from open records requests.

Sometimes even when a document is open to the public, agencies find ways to keep it from the public eye.

Sen. John Kefalas, D-Fort Collins, has become an advocate for openness and transparency at the Colorado General Assembly.

This year, he is sponsoring House Bill 1193, which would limit how much a state agency can charge for research and retrieval fees.

Those fees were an issue for the Colorado Springs Independent this year when the paper was charged for requested documents from the city of Colorado Springs.

"At times it has blocked us from doing stories that we've been interested in pursuing," said Kirk Woundy, editor in chief.

Woundy said that late last year the paper was investigating whether City Council members were making a habit of corresponding through emails as a type of meeting and having discussions that would never emerge in public hearings that are open to the public.

"No matter how we phrased the request, the estimated cost was between $150 to $400," Woundy said. "We weren't looking to nail someone to the wall here; we didn't even know what we were going to get. But at that price, we just didn't feel like it was good money for us to spend."

Bill would limit fees

Kefalas' bill would limit search and retrieval fees to $32 an hour with the first hour free.

That could still allow agencies to charge large sums - like $300 for documents - that an agency says it took 10 hours of labor to compile.

Roberts said the bill is good in the sense that it requires consistency, but he was concerned that the maximum set by law would still be more than case law has set as a "reasonable" fee. Depending on whom you ask, and how the law is interpreted, it's generally thought $25 an hour is a permissible fee.

But the bill would limit government agencies from selecting their most expensive employee - say attorneys who get paid hundreds of dollars an hour - to compile the records and charge obscenely large fees.

Kefalas said that a key element of the bill is requiring state, county and municipal agencies to post their CORA policies and fees online. He said that should limit abuse, and if there are problems, he pledged to return next year and revisit the issue.

The bill will be heard Monday in the Senate State, Veterans and Military Affairs Committee. It has passed the House.

"The public needs to have access to public records, and they need to have some certainty about what the charges might be," Kefalas said. "It's part of government's responsibility to make this available, subject to CORA, but at the same time we need to make sure that there are reasonable charges because some times requests can be pretty voluminous."

Last year, Kefalas sponsored House Bill 1041, which limited when and how much agencies could charge for mailing costs to people who were requesting documents and couldn't pick them up in person.

Herpin championed a bill this year that would have added protections to journalists when it comes to keeping sources confidential.

Herpin said he was inspired to bring Senate Bill 34 this year by the case of Fox News reporter Jana Winter, who was subpoenaed by Colorado courts and could have been forced to reveal her sources in the trial of James Holmes. Holmes is accused of carrying out the Aurora theater shooting.

The courts determined that New York state shield laws protected her from having to testify. Shield laws are specific exemptions for journalists that protect whistleblowers.

Herpin's original bill would have made Colorado's law as strong as New York's - an absolute protection. He amended it so that it strengthened Colorado's existing law but wasn't absolute.

The bill was killed in committee.

He said he'll bring the bill again next year.

"It doesn't come up often," Herpin said. "When it does come up, that's when we really need the protection."

-

Contact Megan Schrader: 719-286-0644719-286-0644

Twitter: @CapitolSchrader

---

SUNSHINE WEEK

March 16-22

The Gazette is an active participant in Sunshine Week, March 16-22, a national initiative to promote the importance of open government and freedom of information. During the week, The Gazette will include a special designation on stories where open government and records were key to getting information. Participants in Sunshine Week include news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know. Learn more at sunshineweek.rcfp.org.

---

Colorado Freedom of Information Coalition

This nonprofit group is "dedicated to ensuring the transparency of state and local governments in Colorado by promoting freedom of the press, open courts and open access to government records and meetings." Learn more, coloradofoic.org.